The Chief Justice Practice Direction And Matters Arising

Chief Justice Sophia Akuffo

Following the judgment of the Supreme Court in Republic v Eugene Baffoe-Bonnie and 4 Others (Suit No. J1/06/2018, Judgment given on 7th June, 2018), the Chief Justice issued a Practice Direction (Disclosures and Case Management in Criminal Proceedings) for the resolution of criminal cases in criminal courts

The impression created is that the practice direction is mainly aimed at Judges and Magistrates without considering other participants in criminal cases especially the Police Prosecutors. This conclusion is based on a speech Her ladyship the Chief Justice delivered at the opening of the 38th annual general meeting of the Association of Magistrates and Judges of Ghana, held on the 03 Oct 2018 at the Labadi Beach Hotel, she said “following the recent judgment of the Supreme Court in Republic v Baffoe-Bonnie and 4 Others, a Practice Direction on ‘Disclosures and Case Management in Criminal Proceedings’ will soon be available to all Judges and Magistrates who handle criminal cases, with the eventual amendment of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The Practice Direction is to provide standards in the management of criminal cases in all Courts with criminal jurisdiction, to help improve quality in criminal justice delivery across the country.” This conclusion is also buttressed by the numerous complaints received from a number of Police Prosecutors who are quite confused about the process, not knowing exactly what to do. There is an assumption that, everyone can just read the Practice Direction, understand and work with it. There is the need to understand that, majority of Police Prosecutors are not lawyers nor people with any legal education. All do not have the same level of intelligence and will need some training to comprehend the Practice Direction.

It is stated in the preamble to the Practice Direction that, the OVERRIDING OBJECTIVE is TO ENSURE THAT CRIMINAL CASES ARE RESOLVED FAIRLY, JUSTLY, EFFICIENTLY AND EXPEDITIOUSLY. If the concerns enumerated below are not addressed immediately, the objectives are not likely to be achieved.

Suddenly without any orientation, the Police Prosecutor is expected to actively play his/her role and assist the court in achieving the overriding objective of the Practice Direction. The Police Prosecutor has not been oriented about the whole process and what his/her role is. How can the Police prosecutor play his/her role properly when he/she lacks basic understanding of the process?

Paragraph 3 of the Practice direction states “Before a criminal matter is commenced in Court, the Prosecution shall file and serve on the Accused person or Counsel for the Accused person (if any) the Charge Sheet / Indictment and the Facts of the Prosecution’s case together with all other materials that require disclosure under paragraph 7 of this Direction.” Paragraph 7 says as follow: “Materials requiring disclosure by the Prosecution shall include the following:

• Copy of the Charge Sheet / Indictment
• Copy of the Facts of the Prosecution’s case
• Copies of Statements made by the accused person before commencement of trial (such as Caution Statement, Charge Statement, Statutory Statement as well as any other Statements made by the accused person before trial commences)
• Copies of all Witness Statements made to the Police and other law enforcement or investigative bodies by persons who may or may not be called upon to testify for the Prosecution at the trial
• Copies of any documents in possession of the Prosecution which are relevant to the case and which the Prosecution may or may not tender at the trial
• Photographs of any real evidence (objects) in possession of the Prosecution which are relevant to the case and which the Prosecution may or may not tender at the trial, such as guns, cutlasses, knifes, etc.
• Copies of any other materials in possession of the Prosecution which are relevant to the case including audio, video and other electronic recordings as well as any unused materials which may assist the accused person in the preparation of his defense.
• Copies of any exculpatory evidence in possession of the Police and other law enforcement or investigative bodies (the Prosecution is under an obligation to inquire from the relevant law enforcement or investigative bodies the existence of such evidence, procure and preserve same for disclosure)

This means that the Police Prosecutor is expected to run two (2) copies of the above listed documents in his/her possession for filing and serving on the other side. The question Police Prosecutors are asking is who bears the cost of the copies? Obviously, the prosecutor is not expected to pay from his/her pocket. Avenues should not be provided for people to be corrupt or perceived to be. The next thing to be heard would be Prosecutors are demanding money from complainants and accused persons to run photo copies which is a recipe for corruption. If that happens who should be blamed, the state or the prosecutor?

Already Prosecutors and Court Warrant Officers (CWO) are saddled with a lot of cost, especially transportation cost. In Accra for example, there are thirty-three (33) courts made up of fourteen (14) Circuit Courts and nineteen (19) District Magistrate Courts. These courts are scattered within and on the outskirts of the city. Prosecutors and CWO’s have to travel by their own means to these various courts to work for the state. Prosecutors buy their own books, drive in their own cars and buy their own fuel to work for the state. They have to call witnesses, investigators and sometimes accused person with their own airtime. Prosecutors do not have offices to work from and have to turn their vehicles into offices where they sometimes have meetings with witnesses. It would therefore be too much to burden the Police Prosecutor further with another cost. All these encourage corruption.

The Prosecutions unit in Accra for example cannot boast of one functioning vehicle. From the Jupol to the last Constable all have to find their own means to the office and to court. The unit is made up of one hundred and seventy-nine (179) personnel. Seventeen (17) of which are Senior Police Officers. Besides the Jupol who has an office to herself, all sixteen (16) Officers share one (1) office. The larger group of the inspectorate and other ranks have no office at all except four (4) who man the secretariat from a small office. So already the Prosecutor works under a lot of difficult conditions, frustration and sacrifice. One has to be self-motivated to work in the unit and should not be saddled with additional cost.

The Prosecutions unit of the Police Service can be likened to a child whose mother is of patrilineal succession and father of matrilineal succession thus ultimately the child has no inheritance. Prosecutors are Police Officers, performing functions of the Attorney General (AG) as stated in Article 88 of 1992 Constitution and therefore the Police Administration does not equip them enough as compared to other units performing functions of the Police Service. The AG also sees Prosecutors as Police Officers and makes no provisions for the unit. The unit is therefore left in a limbo. I have worked with the unit for the past eight (8) years and I do not remember even a single day that the AG’s Department has come to enquire about needs of Police Prosecutors in other to assist with solutions. Not even building the capacity of Police Prosecutors to be effective in their duties.

Again, under paragraph 12 of the direction a Police Prosecutor is expected to submit a witness statement. It is a good idea and the way to go since it can help with expeditious trial. However, the Police Prosecutor has no training on how to prepare a witness statement with some wrongly assuming it is one and same as the one submitted by witnesses at the police station. This is different all together and must be prepared by the prosecutor himself based on the ingredients of the offence and what evidence he wants to lead the witness in to prove the case. This is supposed to build upon the one submitted at the investigative stage. That is why prosecutions in the past had not relied on witness statements submitted at the police station as part of the evidence unless an issue arises as to a substantial difference between what the witness is telling the court and what he/she had told the police. Without the proper training and orientation, substandard witness statements are going to be submitted which will tilt the scale of justice in favour of the accused.

Furthermore, Paragraph 15 of the Practice Direction calls for case management conference. It states that “The Case Management Conference shall be attended by the Accused person (with his Counsel, if any) and the Prosecutor. These shall be the only persons who shall attend the Case Management Conference, unless the Court otherwise directs.” Many police prosecutors have no idea of what this conference is all about since there was no orientation. Many have not been able to meet the disclosure requirements before the conference. I have heard of a case where an accused was discharged after the conference because the Police Prosecutor was unable to raise the money to run the necessary photocopies to serve on the accused. It comes back to the earlier point made that without the needed orientation, training and resources the scale of justice will always be tilted in favour of the accused. This is not to say the judge was wrong because I do not know what happened at the conference and how many times the Prosecutor was given the opportunity to make the disclosures. But if the reason as I heard is true then, there’s a problem with the decision because the Prosecutor cannot be faulted since the state had not made available any funds for photocopy. There is the tendency on the part of some judges and Magistrates to discharge accused person without considering the fact that, the Prosecutors are not the only interested party in these matters and there are victims as well. We have to be careful with such decisions because it may lead to people taking the law into their hands if there is a feeling that, the system favours alleged criminals.

SUGGESTIONS

• The Chief Justice, the Attorney General and to a lesser extent the Ghana Police Service should set up a secretariat at the various courts fitted with scanners, photocopiers and secretaries to assist Police Prosecutors with photocopies and preparation and typing of witness statements.
• An orientation and training programme must be organized immediately for Police Prosecutors.
• The Police administration in collaboration with the Attorney General must equip Police Prosecutors with the necessary tools to make them effective. Offices and vehicles should be provided to facilitate the work of the court unit. A shuttle system can be put in place to ferry prosecutors and CWOs from the office and vantage points to the various courts scattered around to ease the financial burden on the personnel. A library stuffed with the necessary law books should be established where Prosecutors can go for reference and update their knowledge on the law. An alternative is the creation of an online library and Prosecutors granted access.
• Even though prosecution is not a function of the Ghana Police Service effective prosecutions aide the effort of the Police, for what shall it profit the service if it puts in all efforts in arrest and investigations and ends up with poor prosecutions. Like the Bible says, “Better is the end of a thing than the beginning thereof” (Eccl 7:8a KJV). It is in the interest of the service to fund the unit than neglect it since the AG’s department on whose behalf we prosecute has shown no interest in assisting the unit.
• The Police Administration should treat its personnel equally across board. It should not be that, a colleague Officer with same rank and level who works in other units and district, is provided with an office and at least an operational vehicle to facilitate his/her work and same is not done for those that work with the Prosecutions unit. These does not attract personnel with the requisite skill to the unit and those already there are trying very hard to leave. Not even Lawyers employed be the Service are attracted to the unit.
• The Chief Justice through the courts should also consider providing Police Prosecutors and CWOs offices within the court premises to facilitate their work.
• In conclusion if these concerns are addressed, it would not only help in the efficient prosecution of cases but help with the fight against corruption.

Happy New Year

Supt Alex Odonkor

Legal and Prosecutions

Accra Region

[email protected]